Just A Reminder That Abortion Is Still Criminalised In NSW And SA

What's happening in the US is disturbing, but we're forgetting our own major abortion issues in Australia.

May 27, 2019 4:25am

By Elle McClure

NB: in this piece, for clarity, we will at times refer to those seeking an abortion as 'women', as those who identify as female make up the majority of people who do so. However, we acknowledge that those who seek such health services do not always identify as female.

The wave of abortion restrictions that have been announced over the past weeks in the United States (namely Alabama, Georgia and Ohio) are terrifying. In Alabama, now considered to have the most restrictive laws in the country, a law has passed that states that abortion is a crime at any stage of pregnancy, unless the woman's life is seriously at risk, and mandates that doctors will be held criminally responsible for performing the service.

An orchestrated attack on the rights of people seeking abortion (and the health professionals who uphold them), not only do such laws deny many a basic health service, but have wider implications for the rights and wellbeing of the individual.

While it might seem like the stuff of a Handmaid's Tale episode (or at the very least, a Trump-induced nightmare) those laws are not all that dissimilar to those that still exist within Australia. Though decriminalised in every other state or territory—and despite the majority of Australians supporting laws allowing women to access safe and legal abortions—in New South Wales and South Australia, abortion is listed in the criminal code.

In NSW, an abortion can only be administered legally if a doctor agrees that continuing the pregnancy would put the woman's physical or mental health at risk. Social and economic factors can also be considered. Unlawfully procuring an abortion is technically punishable by up to 10 years' imprisonment. In SA, not one but two doctors must agree that the pregnancy would endanger a woman's physical or mental health, or that the child would be born with a serious abnormality. That phrasing—and the inclusion of imprisonment in the relevant law (which in NSW has remained the same since 1900)—is eerily similar to that which is being rolled out in much of the US.

Pressures and limitations are regularly placed on women in other states, too. Abortion was only removed from Queensland's criminal code last year, before which – only in 2016 – a 12-year-old girl was forced to seek permission from the Supreme Court to end her pregnancy. In WA, a person must be given the opportunity to participate in counselling before a termination can be performed. In Tasmania, after only 16 weeks, it requires the approval of two doctors. There's also very few termination services available on the island (and after the last dedicated surgical abortion clinic closed in 2018, women in some cases have to be referred to Victoria to have an abortion after nine weeks).

While in most cases, those who seek an abortion in Australia are able to access that service, the laws that remain can and have created barriers, whether they be psychological or geographical. They also reiterate the notion that a person must 'legitimise' their abortion, removing the right for people to make choices about their own bodies and their own lives, free of outside interference. If the idea that our rights are being infringed in such a way is terrifying to you, you're not alone.

In 2017, Greens MP Mehreen Faruqi brought a bill that would decriminalise abortion and ensure safe access to clinics, in what could have been a chance to remove it from the criminal code entirely, and bring NSW in line with the majority of the rest of the country. It wasn't to be. 25 politicians in the Legislative Council voted against the bill, and only 14 in support. (Remember that now-viral picture of the 25 white male Republicans who voted to ban abortion in Alabama? Yep.)

Of the 25 members of parliament who voted to keep abortion illegal in NSW? They weren't from some obscure party you've never heard of, dwelling in the fringes of conservatism: the overwhelming majority was made up of Liberal (11) and National Party (7) members – giving the results of the recent state and federal elections, in which those parties were elected as a coalition, a pretty ominous feel. Three Labor members, 2 members of the Christian Democratic Party and 2 members of the Shooters, Fishers and Farmers Party also voted against the reform. Four of those MPs were women. 21 were men.

Of the two major political parties, Labor is the only with a current campaign to support the decriminalisation of abortion, titled "Labor's Plan To Support Women's Reproductive Rights". At the time, Labor MP Penny Sharpe said in support of Mehreen Farugi's bill: "These laws are now 116 years old… [and] are no longer in line with community expectation or modern medical practice. Abortion should be regulated in the same way as all other surgical and medical practices. Our current law is archaic and unclear."

The Liberal Party's official policy regarding the interests of women makes zero mention of any change to abortion laws.

Wondering what you can do? We spoke to Renee Carr, the executive director of Fair Agenda, which is currently running concurrent campaigns to decriminalise abortion in NSW and in SA. If you're moved by these laws, and what Renee has to say on the issue, you can check out the NSW petition here, and the SA petition here.

ELLE: In sum, what's the current legislation in each NSW and SA, and has there been any progressive movement on this in the last few years?

RENEE: Right now a woman in South Australia doesn't have the legal right to access abortion care. Instead, abortion is only legal if two doctors agree that there is a serious foetal abnormality, or a woman's physical or mental health is endangered. Under current NSW law, abortion is a crime for a woman and doctor, except if woman's physical or mental health is in serious danger. These laws have a chilling effect and mean that many doctors aren't willing to provide abortion care in any circumstances.

The good news is that there has been some recent positive movement on this issue in NSW - thanks to safe access zones reform led by MPs Penny Sharpe and Trevor Khan. These protections mean that since mid-2018 patients entering reproductive healthcare clinics in NSW have been protected from harassment and intimidation.

ELLE: What real world implications does legislation such as that in NSW and SA have for women and girls seeking abortion?

RENEE: These laws increase the distress, delay and financial burden faced by many of those who need to end a pregnancy. And they disproportionately harm women living in rural and remote areas, who already have limited access to healthcare. In NSW, the laws make it very difficult to access abortion care through the public system. As a result, most women are forced to turn to private clinics, and almost all of these are on the Eastern seaboard. That means increased travel time (and travel costs) to access the healthcare they need. If you live in rural NSW, you can expect to have to drive hundreds of kilometers to access this care.

The financial barriers to access are also significant - with women facing significant upfront costs (many starting at around $400), plus travel costs. A woman who needs to end her pregnancy shouldn't have to travel hundreds of kilometres from home, or cross state borders. And a qualified health practitioner should be free to provide the best care possible, without fear of criminal charges. Unfortunately, that's not yet the case in SA and NSW.

ELLE: Have there been instances where a campaign such as the ones Fair Agenda is running has helped change abortion laws?

RENEE: Absolutely! In fact a huge campaign driven by Fair Agenda and the dozens of groups involved in the Pro Choice Queensland Alliance (building on decades of work by local champions) helped secure historic reform to decriminalise abortion in Queensland last year. Previously, Queenslanders were harmed by laws from 1899 that treated abortion care as a crime, except in limited circumstances. Patients and doctors were also being subjected to horrendous harassment outside clinics. Now, Queenslanders have a right to safe and legal abortion care, under some of the best laws in the country. Now Fair Agenda are again working with local partners to drive similar campaigning in NSW and South Australia; and to secure safe zone protections in WA.

ELLE: What else can people do to help support the decriminalisation of abortion in NSW and SA?

RENEE: One important way people can support decriminalisation of abortion in Australia is by signing up to Fair Agenda's campaigns at www.fairagenda.org. Our online movement of 35,000 people across the country is currently campaigning for change in both states. We'll share important actions people can take to support the campaigns, and also let you know about any other opportunities or threats to reproductive justice in Australia.

If you live in NSW or South Australia, one important thing you can do to help is contact your MP to let them know you support reform. Unlike most issues, votes on abortion are usually put to an individual "conscience" vote in parliament - which means that most MPs will be asked to make up their own mind, rather than following party policy. Many MPs will be listening very closely to their constituents' positions in the lead up to these votes, so it's important you make it clear that you support change.

We've seen in recent debates on this issue that the opponents of legal abortion care will spend huge amounts of money to try and convince MPs to vote against reform - so it's also important for those of us who can, chip in and resource these fights for safe and legal access to abortion care. Otherwise, the noisy minority who want to see women's healthcare trapped in the dark ages may be able to stop this desperately needed progress.

ELLE: How does people signing petitions help affect change on issues like this?

RENEE: Public support is one of the most important factors to securing change on these issues, and petitions are a really important way to show that support. We know that the vast majority of people support the legal right to access this healthcare. But decision-makers also pay a lot of attention to how engaged people are on an issue, and how willing they are to speak up and take action. Even if there are only a small minority of people who oppose abortion access - if they're all signing petitions against new laws, calling MPs' offices every day, and showing up to rallies - decision-makers are likely to pay attention to that. Signing petitions is a quick and simple way to help register your support for positive change (but it definitely shouldn't be the last!). Often local groups will deliver petition signatures and messages to their local MP; and we'll get in touch with everyone who signs onto a petition to let them know about important opportunities for them to help convince their local decision-makers to support change.

ELLE: Though legislated differently (and in the extreme), what do you think we should learn from what has happened in the U.S. over the past couple of weeks?

RENEE: I think the horrifying changes we've seen in Alabama and Georgia are a reminder that we can't ever take progress for granted; or assume that we won't have to fight new attempts to interfere with our healthcare decisions. The fight for full reproductive healthcare access is ongoing - and there are frequently efforts by people in our own state and federal parliaments to not only stop progress, but to roll back our reproductive rights. That's something Fair Agenda is committed to fighting against. So if you're passionate about having the right to make decisions about your own body, health and family - I encourage you to sign up and get involved in Fair Agenda campaigns.